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Petition Seeks Clarification of Text-Message Opt-out Confirmation Messages

On November 1, 2019, Capital One Services, LLC (“Capital One”), a financial services company, filed a petition for declaratory ruling with the Federal Communications Commission (“Commission”) relating to the text message opt-out ruling adopted in SoundBite Communications, Inc.  Capital One seeks a declaratory ruling that a text message sent in response to a “STOP” request may clarify the scope of the sender’s opt-out request.  Capital One argues that some consumers may only want to cancel one part of a broader automatic text-messaging program when they send an opt-out message, and not the entire service.  A confirmation message that allows the possibility for the consumer to make such a clarification is beneficial in ways similar to the standalone opt-out confirmation authorized in SoundBite, Capital One asserts. On November 7, 2019, the Consumer and Governmental Affairs Bureau released a public notice (DA 19-1156) seeking comment on the petition. Comments are due on December 9, 2019, and reply comments are due December 24, 2019. 

FCC Petitions Tracker

Kelley Drye’s Communications group prepares a comprehensive summary of pending petitions and FCC actions relating to the scope and interpretation of the TCPA.

Number of Petitions Pending

• 36 petitions pending
• 1 petition for reconsideration of the rules to implement the government debt collection exemption
• 1 application for review of the decision to deny a request for an exemption of the prior express consent requirement of the TCPA for “mortgage servicing calls”
• 1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners
• 10 applications for review of fax waiver orders under the Anda progeny (these applications for review were not addressed in the Nov. 14, 2018, Bureau order)
• 1 application for review of the CGB order issued on 11/14/18 eliminating the opt-out language rule for solicited faxes (and 2 oppositions to the application for review)

New Petitions Filed

• Capital One Services, LLC – Petition for declaratory ruling that would allow Capital One Services, LLC to, in their opt-out confirmation response, clarify the scope of a consumer’s opt-out request and, in addition, confirm that such a response would be legal under the Commission’s 2012 declaratory ruling in SoundBite Communications, Inc. (filed November 1, 2019)

Upcoming Comments

• Capital One Services, LLC – Petition for declaratory ruling that would allow Capital One Services, LLC to, in their opt-out confirmation response, clarify the scope of a consumer’s opt-out request and, in addition, confirm that such a response would be legal under the Commission’s 2012 declaratory ruling in SoundBite Communications, Inc.
  (Comments due 12/09/19, reply comments due 12/24/19)

Decisions Released

Note:  with the November 2019 issue, Kelley Drye’s FCC Petitions Tracker has been reorganized to add a category for petitions which relate to exemptions to the TCPA’s consent requirements.  

Cases of Note

Human Intervention Removes Dialer From Definition of an ATDS

In Ammons v. Diversified Adjustment Service, the Central District of California determined that the LiveVox HCI dialer does not qualify as an ATDS. Under the present 9th Circuit precedent, equipment that “automatically” dials from a stored list of numbers can qualify as an ATDS. The dialer at issue was designed so that a “clicker agent” must physically initiate each call through the click of a button. Plaintiff argued that the dialer still had the capacity to store numbers and dial them, the click function was designed solely to avoid TCPA liability.

The Court was not persuaded by this argument and granted summary judgment for the Defendant. The court reasoned that under Marks the amount of human intervention it took to operate the system went “far beyond merely triggering a system to run automatically,” so this precluded the Court from holding that the Live Vox HCI system qualified as an ATDS.

Two Putative Classes Denied Certification Because of Issues Identifying Class Members

In two separate decisions, district courts denied motions to certify classes due to plaintiffs’ deficient methods proposed to identify class members. In each case, the putative class was made up of “wrong numbers.” Plaintiffs alleged that Defendants had contacted them in the mistaken belief that it was contacting a consenting customer. Plaintiffs in both cases suggested identifying putative class members by cross-referencing these “wrong numbers” with phone records and then securing personal affidavits of each class member to verify class membership.

In Sliwa v. Bright House Networks, LLC, Plaintiff’s expert proposed to identify class members by cross referencing the list of numbers called against Defendant’s internal lists that had numbers coded to signify “bad phone” or “incorrect number.” Then, telephone carrier subscriber information could be used to determine each individual’s identity. The Middle District of Florida found that Defendant’s coding system was not consistently used, thus opening the door for individualized inquiries into the inclusion of each proposed class member. Furthermore, the Court reasoned that the self-identifying affidavits would raise due process concerns and require significant individualized inquires. Resultantly, the Court denied the motion for class certification.

In Sandoe v. Boston Scientific Corp., the District of Massachusetts reached a similar conclusion. Plaintiff’s expert proposed to identify class members using a criticized “reverse-append” process, which compared a list of Defendant’s intended call recipients to a list of names associated with those same numbers. Then, she filtered out numbers linked to businesses and compared them to the numbers on the National Do-Not-Call Registry. The Court found this method exceedingly unreliable because the process failed to identify the named plaintiff as a putative class member. Further, Defendant signaled its intent to raise a consent defense to any affidavit submitted. This would have resulted in the cross examination of thousands of putative class members at trial. This procedure has been expressly rejected in the First Circuit. Consequently, the Court denied the motion for class certification.

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